FAMILY COURT OF AUSTRALIA
| NIMETT & ESTATE OF NIMETT (DECEASED) | [2007] FamCA 1189 |
| FAMILY LAW – PROPERTY SETTLEMENT – deceased husband – husband’s Will left his estate to two children [16 and 15] in equal shares upon attaining the age of 25 years - major asset rural property gifted to husband by his parents during the marriage – rural business operated in partnership by husband and wife until his death and operated in partnership by wife and executors after husband’s death – conflict and deterioration in relationship between wife and executors - interim orders gave wife virtual control of the operation of the property pending final hearing – final orders sought by executors for subdivision and/or sale of rural property – final orders sought by wife to hold the children’s share in trust until they attain the age of 25 years – disputes about alleged debts to husband’s parents – capital growth in value of property since gift to husband - consideration of 75(2) factors where one spouse deceased – consideration of requirements of s 79(8) – discussion of s 79(1), limitations of power, and considerations relevant to an order settling property on children pursuant to s 79 – order made settling portion of the estate’s entitlement on the children with their mother as trustee upon the same terms established by the Will |
| Family Law Act 1975 (Cth) |
| Allan and Allan (1987) FLC 91-824 |
Continue reading Nimett & Estate of Nimett (deceased)
Sign in free to access the full text
- AGLC
- Nimett & Estate of Nimett (deceased) [2007] FamCA 1189
- Case
- [2007] FamCA 1189
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was how to equitably distribute the assets of the former marital partnership and the deceased husband's estate between the wife and the estate. This involved determining the respective entitlements to real property, livestock, plant, equipment, and various financial accounts, as well as allocating responsibility for outstanding taxation liabilities.
Justice Moore ordered a significant division of the property. The wife was to receive 32.5% of the O property as a tenant in common, and a further 33.75% of the O property as trustee for each of the two children, to be held on trusts established by the deceased's will. Additionally, the wife was to receive the livestock, plant, and equipment owned by the former partnership, and the partnership's interest in a B Credit Union account. In return, the wife was ordered to assign her interest in a jointly held B Credit Union account to the deceased's estate. The remaining assets were to be retained by each party exclusively, with the estate bearing the deceased's and its own taxation liabilities, and the wife bearing her own taxation liabilities. The court also made provision for the Registrar or a Deputy Registrar to execute necessary documents if either party failed to do so.
Orders
Orders of the court
1.
Pursuant to s 79 of the Family Law Act 1975 on or before one (1) month from the date of these orders the respondent executors are to do all things and sign all documents necessary to
(a) transfer to the wife as a tenant in common 32.5% of the property known as O property;
(b) transfer to the wife as trustee for each of the children A and B 33.75% of the property known as O property as tenants in common to be held by her for each of the beneficiaries upon the same trusts created by the Will of their father, the late Mr Nimett;
(c) transfer to the wife the livestock, plant and equipment owned by the partnership formerly conducted by the wife and her late husband;
(d) assign to the wife the whole of the interest in the B Credit Union account held as an asset of the partnership formerly conducted by the wife and her late husband.
2.
Pursuant to s 79 of the Family Law Act 1975 on or before one (1) month from the date of these orders, the applicant wife is to do all things and sign all documents necessary to assign to the Estate of the late Mr Nimett the whole of the B Credit Union account held jointly by her with her late husband.
3.
Unless otherwise specifically referred to in orders 1 and 2 hereof –
(a) the estate is entitled to retain to the exclusion of the wife the assets currently owned by the estate including shares, sale proceeds of a motorbike and B Credit Union account and be responsible for payment of taxation liability incurred by the late husband and/or estate;
(b) the wife is entitled to retain to the exclusion of the estate the assets currently owned by the wife including deposits in financial institutions, shares, horses, gear and float and other chattels located on O property and her superannuation and be responsible for payment of taxation liability incurred by her.
4.
If either party refuses or neglects to execute any deed, instrument or writing necessary to give effect to these orders, the Registrar or a Deputy Registrar of the Family Court of Australia Sydney Registry is appointed pursuant to s 106A of the Family Law Act 1975 to execute it in the name of that party and to do all other necessary acts and things to give validity and operation to the deed, instrument or writing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.